Posted on January 30, 2013 by Frances Tse

LEC remarks that road dedications can only be conditioned under s94 and pursuant to a contributions plan

Remarks made by Craig J in Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1 in Class 1 of the Land and Environment Court’s jurisdiction indicate that even if a developer offers to dedicate land for public roads, a council cannot impose consent conditions requiring the dedication free of cost unless they are imposed under s94 of the Environmental Planning and Assessment Act 1979 (EPA Act) and authorised by a contributions plan.

Facts

The development in question was a new school to be built at Kellyville. Development consent for the school was granted by the Sydney West Joint Regional Planning Panel on 10 November 2011. The appeal arose out of The Hills Shire Council’s (Council) refusal to approve a s96 modification application to amend several conditions of development consent, one of which was condition 98  which provided:

“No Occupation Certificate can be issued until the proposed ‘local road’ has been dedicated as public road at no cost to Council, requiring a separate development application or complying development application. This dedication must occur at no cost to Council.”

Submissions

The Australian International Academy of Education Inc (Academy) asserted that condition 98 should be deleted as it was invalid, because (amongst other things):

• the school development did not generate a need for the new road, therefore the condition did not satisfy s94(1) of the EPA Act,
• the Council’s contributions plan did not identify a requirement for any contributions, whether monetary or for dedication of land, for educational establishment developments, therefore the condition did not satisfy s94B(1) of the EPA Act.

The Council asserted that condition 98 was valid and should remain because, amongst other things, the Academy had volunteered to dedicate the land as part of its development application, therefore it did not have to imposed under s94(1) of the EPA Act.

Validity of condition requiring dedication of road

Craig J considered the earlier cases of Fitch v Shoalhaven City Council [1967] 67 LGRA 165, Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 and Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455 and concluded that:

“It is now well settled that s94, coupled with the requirement for a contributions plan made in accordance with s94AE, provides the sole source of statutory power to impose a condition of development consent either requiring the payment of a monetary contribution or requiring the dedication of land”

Rejecting the Council’s argument that the Academy had volunteered to dedicate the local road free of cost based on the facts, his Honour went on to say that even if the dedication of land was part of the Academy’s development application, that still “does not authorise the imposition of a condition requiring dedication if that obligation cannot be sustained by reference to s94, as qualified by s94B(1).”

His Honour applied the comments by Jagot J in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733 that s80A(1)(a)  of the EPA Act (the power to impose conditions of consent) was not a source of residual power to impose conditions requiring development contributions outside the scheme of s94 and voluntary planning agreements. He concluded that condition 98 could only have been validly imposed if it satisfied the requirements of s94(1), that there be identified a need or likely need for the new local road consequent upon the development of the school, and that the condition is allowed by and determined in accordance with a contributions plan.

As neither of those requirements were satisfied, Craig J held that the condition was not validly imposed.

Conclusion

The remarks made in this case are inconsistent with an earlier Class 1 decision of the Court in Kerford Developments Pty Ltd v Albury Council [2012] NSWLEC 1020 where Commissioner Pearson held that a condition requiring dedication of land could be imposed under s80A(1)(a) if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent. In that case, the proponent volunteered to dedicate land to address the environmental impacts of the development on the natural environment.

Whilst Craig J’s remarks are obiter dicta, they have significant implications for all subdivision developments and other developments involving the creation of public roads in NSW.

Councils would no longer be able, as is the established practice, to rely on approved plans showing land to be dedicated as public roads to achieve the creation and ownership of such roads.

The dedication would only be able to be conditioned under s94 of the EPA Act pursuant to a contributions plan or required under a planning agreement.

This is particularly problematic for new development areas as many contributions plans may not provide for dedication of roads and, in any case, it is difficult to see how a contributions plan would be able to identify all future public roads that will be required before developments are actually proposed.

If his Honour’s remarks are adopted, it may be that more developers and councils would need to enter into planning agreements to ensure that roads are dedicated.